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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 14, 2009
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Topic category:  Government/Politics

NRO's Bench Memos of Sotomayor Day 1: BEWARE

The problem is that the liberal media establishment prefers to present a happy fairy tale to presenting the record of Judge Sotomayor and to make the issue, "Is a Latina suitable for the United States Supreme Court?," instead of "Is Judge Sonia Sotomayor suitable for the United States Supreme Court?".

For those who missed the first day of Judge Sonia Sotomayor's confirmation hearing, check the July 13, 2009 Bench Memos at National Review Online, much more illuminating and concerning than the biased liberal media establishment coverage.

Ed Whelen's preview warned people not to "expect much action" and forecast that the nominee's opening statement would be "a moving account of her life story, combined with a declaration of her commitment to impartiality that aims to answer a primary line of concern about her record."

He was right.

Judge Sotomayor read a script designed to assure that she's impartial, but the ability to read a written script or a teleprompter does not qualify anyone to serve on the United States Supreme Court.

Wendy Long encouraged Senators to look to the record instead of to accept the scripted assurance and even suggested a line of questioning that would call upon the nominee to try to explain apparent bias.

Ms. Long:

"Cathy Ruse at Family Research Council has worked up an exceedingly good line of questioning for the Sotomayor hearings, based upon Judge Sotomayor's comments from the bench at oral argument during one of the federal Partial-Birth Abortion case appeals on the Second Circuit in New York in 2004.

"In the case, National Abortion Federation v. Ashcroft, the National Abortion Federation claimed that partial-birth abortion was the safest abortion method in some cases and therefore the law banning the practice was unconstitutional. The Department of Justice requested the medical records to back up this claim with all identifying information regarding the patients removed. The partial-birth abortionists refused to provide any records with evidence to support their claim. As Cathy says: 'This was tantamount to arguing that they should win the case on their word alone.'

"The District Judge ruled that the abortion providers should produce the medical records. That decision was appealed to the Second Circuit Court of Appeals. Judge Sotomayor sat on the appellate panel. During oral argument, according to the Associated Press (April 22, 2004), she stated: 'I just don’t understand what the records will prove in this case.'

"Says Cathy: 'What the records would prove is whether or not the partial-birth abortion doctors were telling the truth. It is irresponsible for a judge to insist that one side in a case merely be taken at its word, especially when evidence is readily available to corroborate or impeach its statements. Appellate courts are particularly unsuited to second-guessing the decisions of the trial court regarding evidence of this nature.'

"She is correct, and moreover, this fits the very disturbing pattern of Judge Sotomayor, by her own admission, seeing 'the facts [she] choose[s] to see' in a legal case.'

"I hope that at least one Senator will ask Cathy's questions:

Does Judge Sotomayor believe the abortion industry should be excused from having to prove its case in court when it sues to strike down a duly-enacted abortion regulation?

Does she believe medical records are relevant and admissible as a general matter but not if they involve abortion?

Does Sotomayor have such great faith in abortion providers that she is willing to accept their verbal claims as fact and impose them as a matter of law?"

Excellent questions!

How many Republican Senators are willing to ask them though?

It's must easier to accept the nominee's protestations of impartiality than to risk the wrathe of the liberal media establishment by pointing to actual evidence of either blatant bias or subconscious favoritism, each of which should be disqualifying.

Robert Alt focused on the inappropriateness of Senate Judiciary Chairman Patrick Leahy's guileless discouragement of tough questions.

Mr. Alt: "Senator Leahy's opening statement leads with the race card, decrying a past in which minority nominees were asked unfair questions during confirmation hearings.... regrettably, it is Judge Sotomayor who has made statements like this. In her infamous La Raza speech, she endorsed the idea of physiological differences in reasoning...."

"Contrary to Leahy's suggestion, it isn't racially insensitive for Senators to ask about these incendiary statements. Rather, taking up Leahy's theme, we should be beyond the kind of thinking exemplified more by Judge Sotomayor's statements than by those of a best begotten past that he chose to quote. The Senators need to demand answers as to why Judge Sotomayor apparently is not."


But who will dare to do it? (Mr. Alt is not a member of the Senate Judiciary Committee.)

Mr. Alt also pointed out, and praised Senators Hatch and Graham for emphasizing, the hypocrisy of Democrat Senators.

Senator Hatch: "If a compelling life story, academic and professional excellence, and a top ABA rating make a convincing confirmation case, Miguel Estrada would be a U.S. Circuit Judge today. He is a brilliant, universally respected lawyer, one of the top Supreme Court practitioners in America. But he was fiercely opposed by groups, and repeatedly filibustered by Democrat Senators, the ones who today say these same factors should count in Judge Sotomayor’s favor."

Mr. Estrada's problem is that he actually intended to practice the impartiality he preached!

Mr. Alt: "It is worth remembering how the Democrats treated Estrada, whom they not only filibustered, but treated demonstrably differently than other non-minority nominees, and whom they viciously attacked as being insufficiently Hispanic.... And yet it was a Democrat, Senator Leahy, who played the race card to start the hearings.

Mr. Whelan was encouraged that the opening statements of Republican senators were "generally...quite strong, especially in criticizing President Obama’s 'empathy' standard and highlighting concerns over Sotomayor’s impartiality."

But the nominee will be confirmed unless it becomes apparent that her assurance of impartiality is no more trustworthy that President Obama's assurance that Americans earning less than $250,000 a year won't pay any more taxes!

Mr. Whelan summarized the nominee's opening statement as "[v]ery short" and "[l]argely autobiographical" and acknowledged that the nominee said the right things about fidelity to the law and understanding arguments and concerns.

Judge Sotomayor:

"Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have not been made to serve the interests of any one litigant, but always to serve the larger interest of impartial justice."

"The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is how I seek to strengthen both the rule of law and faith in the impartiality of our judicial system. My personal and professional experiences help me to listen and understand, with the law always commanding the result in every case.”

But in that videotape of the nominee's appearance at Duke University, we heard her say that appellate judges make policy and mock the idea that they don't.

Who really believes that the nominee will follow the law's "commands" if she is sitting on the highest court when she did not necessarily do that when sitting on lower courts?

Mr. Whelan is certain "that Republican senators will be eager to explore some of the seeming inconsistencies between [Judge Sotomayor's] statements today about the role of a judge and statements that she has previously made."

I hope he's right!

Mrs. Long offered a tutorial to the newest Senator, non-lawyer Al Franken/Stuart Smalley.

Mrs. Long:

"Al Franken just said, 'I'm not a lawyer but . . .'

"He plays one on TV.

"He repeated a left-wing canard that it is 'judicial activism' when the Supreme Court overturns an act of Congress.

"Stuart, I hate to kill the buzz of your Daily Affirmation, but there is a little old case called Marbury v. Madison. You might want to look it up. Anyway, sometimes Congress (that's the branch you are now in) or the states pass laws that don't square with the Constitution. If those laws are challenged before the Court, it is the Court's obligation to declare them unconstitutional.

"Judicial activism is something different: That's when judges make decisions based on their own personal views, background, opinions, and personal sense of justice. This can be either striking down legislative acts that don't violate the Constitution and are just the people properly governing themselves, or failing to uphold provisions that are explicit in the Constitution.

"Just wanted to share."

The latest Senator owes his seat to ACORN, so he will enthusiastically support the ACORN-La Raza backed nominee. Like ACORN, he won't let the law or the truth inhibit him from promoting the Far Left agenda.

Having skillfully skewered Stuart, Mrs. Long celebrated Senator Sessions and stressed the seriousness of the confirmation process.

Mrs. Long:

"Senator Sessions was fantastic. He was personally gracious and statesmanlike, yet he made the strong statement that 'our legal system is at a dangerous crossroads': We will either follow the path of the American tradition, where judges apply the law impartially and according to their oath, allowing the people to make their own laws in a representative democracy, or the path of President Obama and Judge Sotomayor, where judges, in the words of Sotomayor herself, can decide what facts they 'choose to see' in a case, 'and where they can pursue their own opinions and agenda.

"'Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not the law,' he said, calling such a view of the role of the Court 'disqualifying.'"


A person who will not fulfill the judicial oath certainly in not qualified.

Mrs. Long also noticed the Senate Democrats playing "the God card."

Mrs. Long:

"It was interesting to see the Senate Democrats invoking God so strongly. Senator Schumer described America as 'God's noble experiment' — not once but twice, with the emphasis on 'God.' Senator Leahy also chose to emphasize God, when he swore in Sotomayor, saying 'So . . . help . . . you . . . GOD.' Is that allowed in the Senate under their view of the Constitution?

"Or are they just putting on a great show, along with the White House, to try to make Sotomayor sound like a Republican proponent of originalism and judicial restraint? Has Al Franken been there long enough to give them all a crash course in acting?

"For her part, Judge Sotomayor followed her short, White House mandated script, and even forcefully did her best John Roberts imitation, saying that her 'judicial philosophy' is 'simple': 'fidelity . . . to . . . the . . . law.' Great, Judge . . . now we just need to hear how we reconcile that with 'choosing to see' the facts you like in a case before you, and how it squares with the law you're supposed to be faithful to being so indefinite that a judge herself has to invent its meaning?"

They are putting on a show and it DOESN'T reconcile.

Hans A. von Spakovsky knows that.

Mr. von Spakovsky:

"Listening to Sonia Sotomayor’s opening statement at her confirmation hearing today, I was struck by two of her assertions. First, her claim that she believes in 'fidelity to the law' and that 'the task of a judge is not to make the law — it is to apply the law' is quite a change from her previous speeches and articles. It reminds me of the famous statement by the former editor of the Saturday Evening Post who once famously said that 'when a politician changes his position, it’s sometimes hard to tell whether he has seen the light or felt the heat.' Given the consistency of Sotomayor’s contrary views on this particularly issue throughout her career, it seems more likely that she has felt the heat rather than seen the light. The fact that she felt the need to address this in her opening statement shows that she feels vulnerable on this issue.

"Second, her claim that she has hewed 'faithfully to precedents established by the Supreme Court' is certainly untrue in an area I know well from my time as an FEC commissioner — campaign-finance law. In 2004, the Second Circuit (Sotomayor included) refused to grant a rehearing or to overturn the decision of a three-judge panel that directly and unquestionably failed to follow the clear precedent established by the Supreme Court. In Landell v. Sorrell, the Second Circuit thus upheld a Vermont law that limited the expenditures of political candidates running for state office — despite the holding in 1976 by the Supreme Court in Buckley v. Valeo that such limitations are a violation of the First Amendment and 'constitutionally invalid.' The dissenting judge on the panel in Landell pointed out that the Supreme Court in 'Buckley rejected in the most explicit terms the notion that government may, under a Constitution containing a First Amendment, limit the amount of political speech by candidates and ordinary citizens [by limiting expenditures].'

"In 2006, the Supreme Court reversed this obviously wrong decision by the Second Circuit. So there is no question that Sotomayor refused to follow Supreme Court precedent on campaign-finance law. This was no real surprise since she has an extreme view on this issue. She has compared contributions to bribes and seemingly sees no First Amendment problems in government regulation of protected political speech and political activity."

The problem is that the liberal media establishment prefers to present a happy fairy tale to presenting the record of Judge Sotomayor and to make the issue, "Is a Latina suitable for the United States Supreme Court?," instead of "Is Judge Sonia Sotomayor suitable for the United States Supreme Court?".

The answer to the first question is yes, of course.

But the answer to the second question is no.

The attempt to "make over" Judge Sotomayor as an originalist (like Justice Clarence Thomas) is smart political strategy, but her confirmation would be a tragedy.

Take it from former Thomas law clerk Mrs. Long: Judge Sotomayor is no originalist!

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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